Parsing Trump’s Recent Policy Statements on the South China Sea

The U.S.-Vietnam joint statement on the South China Sea contains glaring contradictions.

By Mark J. Valencia for The Diplomat

November 17, 2017

During his recent 12-day trip to Asia, including stops in Japan, South Korea, China, Vietnam, and the Philippines, U.S. President Donald J. Trump focused mainly on North Korea and trade issues. He treated the South China Sea problems, by comparison, as a side issue or an afterthought. There were plenty of opportunities to raise these issues. In addition to bilateral summits at each of his stops, Trump attended the multilateral APEC meeting in Vietnam and the ASEAN-U.S. Summit in the Philippines.

During his stops in east Asia, Trump did make a few perfunctory and superfluous statements on the South China Sea. He reaffirmed the need to uphold the principle of freedom of navigation and over-flight, respect for international law, and a peaceful and rules-based settlement of disputes. But when the issue of the South China Sea was raised at the closed-door meeting between ASEAN and the United States, the only reported response from Trump was “a need for fair trade.” Given the bombastic and aggressive statements by Trump administration officials early in his term, this relatively milquetoast approach did not inspire confidence in friends and allies nor fear in supposed targets of the U.S. policy. Indeed it only served to deepen the concern with U.S. “staying power” in Southeast Asia.

In Vietnam and the Philippines, Trump issued joint statements with each of his respective hosts that, among other points, elaborated at some length their shared policy regarding the South China Sea. Unfortunately this policy potpourri only managed to confuse friends and rivals alike. Indeed, the parts of these joint statements that dealt with the South China Sea issues were a gobbledygook of redundancy and disingenuousness.

In the 14-paragraph joint statement issued by Trump and Vietnamese President Tran Dai Quang, the longest paragraph was the one that addressed the South China Sea issues. The U.S.-Philippines joint statement essentially repeated phrases from the U.S.-Vietnam leaders’ joint statement.

The Trump-Quang statement began by underscoring the strategic importance to the international community of free and open access to the South China Sea. This agreed, the two then reaffirmed “the importance of unimpeded lawful commerce and the need to respect freedom of navigation and over flight and other lawful uses of the sea.” A little later in the paragraph, the statement also proclaimed the parties’ commitment to “refrain from unlawful restrictions on freedom of the seas…” For Vietnam these phrases are particularly disingenuous.

First of all, Vietnam, by agreeing to this wording, has – unwittingly or not – signed on to the U.S. interpretation of these phrases as meaning freedom of navigation for U.S. naval intelligence, surveillance. and reconnaissance (ISR) vessels and aircraft in and over other countries’ 200 nm Exclusive Economic Zones (EEZ) — especially that of China. Such tacit agreement on this interpretation could come back to haunt it. These U.S. ISR probes violate China’s domestic laws governing marine scientific research and environmental protection as well as the responsibility in the UN Convention on the Law of the Sea (UNCLOS) to pay “due regard” to the rights of the coastal state while operating in its EEZ. They may even violate the UN Charter’s prohibition on threat or use of force.

The problem for Vietnam is that its own national laws restrict freedom of navigation — and have been repeatedly challenged operationally by the United States. This begs the question of whether Vietnam is changing its position, or is Washington giving it a pass?

The joint statement goes on to reiterate the parties’ commitment to “refrain from escalatory actions [and] the militarization of disputed features.” This would presumably include actions like Vietnam’s August 2016 installation on five of its occupied features of mobile rocket launchers capable of striking China’s runways and installations. When these launchers were revealed, the U.S. State Department admonished this action, saying, “We continue to call on all South China Sea claimants to avoid actions that build tensions.”

Vietnam and the Philippines both reclaimed features and “militarized” them years ago. Moreover, the Philippines used a naval vessel in a standoff with China at Scarborough Shoal — a clear threat of use of force and thus a violation of the UN Charter, UNCLOS, and the DOC. Moreover, the United States is well aware that Vietnam and the Philippines continue construction on and “militarization” of the features they occupy. The United States itself has increasingly raised tensions by militarizing the region with its forward deployed troops, assets and patrols as part of the “rebalance” of its defense forces. As Trump said onboard the homeward-bound Air Force One, “The Philippines is an unbelievably important military location because if you speak to the admirals and you speak to the generals that’s a perfect spot.”

The Trump-Quang statement then “called for the full and effective implementation of the ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC).” Fair enough. But the DOC includes the commitment to resolve territorial and jurisdictional disputes through friendly consultations and negotiations by sovereign states directly “concerned.” Ironically this is China’s position – not that of the United States, which instead supports multilateral negotiations or third party arbitration — at least by others. Indeed, China consistently points to this commitment and argues that others are not abiding by it, thus violating the DOC.

Finally, the statement “called for all South China Sea claimants to clarify and comport their maritime claims in accordance with the international law of the sea as reflected in the 1982 United Nations Convention on the Law of the Sea.” This is disingenuous of the United States given that it — alone among maritime powers — has not ratified that Convention. Moreover according to the United States, Vietnam continues to violate UNCLOS in several ways. Vietnam has an excessive straight baseline and a prior notification regime for entry of warships into its territorial sea and contiguous zone as well as a requirement for foreign military vessels to place weapons in non-operative positions before entering its contiguous zone. These domestic laws and alleged violations of UNCLOS have been the targets of repeated U.S. Freedom of Navigation Operations (FONOPs).

To seasoned observers these glaring contradictions of fact render this statement an embarrassment to both leaders. Surely the United States and Vietnam can and should do better in public diplomacy if they want other countries to believe and do what they say rather than what they do.